IX. THE TRIAL PROCESS *** verdict

Question 1

A. Excluding Witnesses From the Courtroom –
1. Generally
Example [July 2002 #18; February 2006 #16; February 2007 #13]: Defendant wants to exclude all witnesses from the courtroom during testimony at trial, except for the parties and whoever is testifying. What procedure, if any, is available to accomplish this objective?

2. Exemptions
3. Sanctions for Violation

Answer 1

Invoke the rule. At the request of either party or on the court’s own motion, the witnesses on both sides are sworn and removed from the courtroom so they cannot hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule.
Witnesses placed under the rule should be instructed by the court not to converse with each other or anyone about the case, except attorneys, without the court’s permission, or read any report or comment about testimony.

2. Exemptions
   The burden is on the party seeking an exemption of a witness from the rule to raise and support its application at trial. The rule does not authorize exclusion of:
   • a party who is a natural person or the spouse of such natural person;
   • an officer or employee of a party that is not a natural person and who is designated as its representative by its attorney, or
   • a person whose presence is shown by a party to be essential to the presentation of the cause. Expert witnesses are among those who may be exempted from the operation of the rule at trial because of the “essential” nature of their presence in the courtroom. [February 2000 #13; July 2001 #20]
3. Sanctions for Violation
   Sanctions include excluding the testimony of the witness. Abuse of discretion is the standard of review. [February 2000 #14]

Question 2

B. Case in Chief

Answer 2

The party with the burden of proof on the whole case (usually the plaintiff) begins the evidence. The plaintiff calls the first witness and conducts direct examination. The other litigants cross-examine the witness. Once the plaintiff has completed the case in chief, the plaintiff rests.
After the plaintiff rests, the defendant puts on a case in chief and, when finished, rests.
After all parties have rested, the plaintiff is allowed rebuttal testimony. If plaintiff is allowed to rebut, so are the defendants. Once rebuttal is over, all parties close the evidence.

Question 3

C. Directed Verdict [July 2003 #19; July 2005 #18; February 2006 #19; February 2009 #18; July 2009 #19; February 2011 #16; July 2011 #19]

1. Motion
2. Timing
3. Grounds for Directed Verdict

Answer 3

The motion for a directed or instructed verdict is the method used to present a party’s argument that there are no controverted fact issues for the jury’s determination (i.e., the legal sufficiency of the evidence).

A party may make a motion for a directed or instructed verdict when:
• an opponent rests;
• an opponent closes; and
• all parties close.

3. Grounds for Directed Verdict
   a. For Plaintiff
   A plaintiff may successfully move for a directed verdict by showing the court that:
   • plaintiff has conclusively proven (i.e., evidence is so powerful that reasonable minds could not differ regarding it) all elements of one ground of recovery; and
   • the defendant has failed to produce any evidence (i.e., has produced no evidence) on one element of each ground of defense.
   b. For Defendant
   A defendant may move for a directed verdict by showing the court that:
   • the defendant has conclusively proven all elements of at least one ground of defense; or
   • the plaintiff has failed to produce any evidence on at least one element of each ground of recovery. [July 2003 #19]

Question 4

verdict, number of jury needed

Exemplary damages

Answer 4

verdicts in civil cases can be rendered by 10 members of an original jury of 12, or five members of an original jury of six. All 10 or five must agree to all the answers and each must sign the verdict.

punitive damages may be awarded only if the jury was unanimous both in finding liability for damages and in setting the amount of exemplary damages.